The jury was dismissed without any mention of a faulty stipulation regarding the accuracy of a DVD shown in court.
The situation was further complicated by the fact that the defense already presented testimony based on the supposed accuracy of both the DVD and the stipulation.
Cook County Judge Vincent Gaughan called the stipulation "a rotten tomato in the barrel" and took an hourlong recess to consider the matter. After reviewing the transcripts, the judge said it was clear the defense had access to an uncompressed, unaltered copy of tape, in addition to the disc.
Gaughan asked the prosecution and defense to work together to resolve the matter. The two sides huddled for nearly an hour before returning to court and telling the judge they intended to put their agreement in writing. Details of the resolution were not announced in open court.
Stacy St. Clair
June 10, 2008 3:49 PM: Quality of copied tape now at issue
A problem surfaced in the R. Kelly trial Tuesday as prosecutors acknowledged they erred by telling the jury that a DVD used during testimony was an exact copy of the sex tape at the heart of the case.
The prosecution learned Monday night that images from the tape were compressed and lost significant detail when they were transferred to the DVD, Assistant State's Atty. Shauna Boliker said.
The prosecutors blamed the error on "dumb lawyers" who simply wanted the DVD to more easily show shortened clips from the original video. The state swore to its veracity in a stipulation, a statement read to jurors in which both sides of the case agree on an item.
The stipulation also misrepresented who made the copy of the tape. It said a prosecution expert witness created it, when it was actually done by an employee of the state's attorney's office.
The controversy is further complicated because the defense already presented testimony based on the supposed accuracy of both the DVD and the stipulation
Cook County Judge Vincent Gaughan called an hourlong recess to consider the issue.
"The stipulation is not true," the judge said. "This is the rotten tomato in the barrel."
After the stipulation had been read earlier in the trial, the defense used the DVD to show jurors that a mark on the male participant's back appears and disappears during the quarter-second that the camera catches his bare back. The defense has told the jury that Kelly cannot be the man on the tape because the R&B superstar has had a dark, caterpillar-shaped mole along his spine since childhood.
Rather than tell the jury the stipulation was incorrect, prosecutors Tuesday called a forensic video expert who ridiculed a defense expert for relying on the DVD.
Kelly's defense team cried foul, telling the judge that the prosecution made the error--and then called a witness to make the defense look foolish and dishonest in front of the jury.
"The stipulation is wrong," lead defense attorney Ed Genson said. "We put a man on based on that and they put [another expert] up there to rebut him and that's not right."